The Caribbean Court of Justice makes a landmark decision

Norman Girvan

07/10/2013

Opinión

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The Caribbean Court of Justice has handed down a landmark decision in finding in favour of Ms Shanique Myrie in the case brought against Barbados for being denied entry, verbally and physically abused, and deported back to Jamaica, on March 14-15 2011.

In handing down its decision the CCJ has done more than give justice to the young woman, then 22, for the psychological trauma and stress caused by the incident. The Court declared that the decision of the Conference of the Heads of Government of CARICOM on the right of entry of Caricom nationals to Caricom member states for six months, is legally binding on Member states without the requirement that it be enacted into their domestic law. In this regard, the Court makes a crucial distinction between domestic law and Community law.

In this finding the Court has not only upheld the right of Caricom nationals to unimpeded, hassle-free travel throughout the Community provided for under the Revised Treaty. Allowed exceptions are where the national is “undesirable” or would become “a charge on public funds”, but the Court laid down strict criteria for the application of such exceptions and made it clear that such decisions are subject to the Court’s jurisdiction.

The Court has also clarified the legal status of decisions of the Conference of Heads of Government in such a way as to enhance the understanding of the legal force of such decisions on the governments of member states. In effect, it says that the decisions of Conference do have legal force, at least “at the level of Community law”.

The Court also found that the wording “agreed” in the Reports of Conference is that same as “decided”, and that the entry of a reservation by a member state to a decision does not violate the unanimity required for decisions.

In several important respects therefore, I read the decision by the CCJ as an important step in strengthening the legal basis for the operation of the Caribbean Community. It gives teeth to the Revised Treaty of Chaguaramas and meaning to the decisions of Caricom organs; and hence can be the basis of addressing the “implementation deficit”.

Most importantly, it gives assurances to ordinary Caricom citizens that they can have meaningful recourse to a Court set up by and for Caricom nations, when their rights under the Revised Treaty are breached by arbitrary and insulting actions by functionaries of member states.

The decision will be undoubtedly be controversial, welcomed in some quarters and denounced in others. But in the opinion of this writer, it can and should be seen as shot in the arm for the integration movement.

Reference may be made to the Executive Summary paras. (7) to (15) and to the full text of the Court’s Decision.

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